Delhi District Court
State vs Kaisher on 16 March, 2026
DLSH010043812023 Page 1 of 55 SC No. 215/2023 STATE Vs. KAISHER & ANR. FIR No. 325/2023 (Nand Nagri) U/s 21(b) NDPS Act IN THE COURT OF SPECIAL JUDGE (NDPS), SHAHDARA, KARKARDOOMA COURTS, DELHI SC No. 215/2023 STATE Vs. KAISHER & ANR. FIR No. 325/2023 (Nand Nagri) U/s 21(b) NDPS Act In the matter of :- State ...(through Ld. Addl. PP) Vs. (1) Kaisher, S/o Sh. Nashruddin, R/o Village Ramjanpur, Tehsil & District Badaun, P.S. Qadar Chowk, Uttar Pradesh. (2) Aakil, S/o Sh. Ahmad Sher Khan, R/o Village Akhtra, Tehsil Bisoli, P.S. Wazirganj, District Badaun, Uttar Pradesh. ....accused persons (Sh. Rajiv Pratap Singh, Advocate for accused persons) Date of institution : 14.07.2023 Date when Judgment reserved : 18.02.2026 Date of Judgment : 16.03.2026 Final Decision : Acquitted DLSH010043812023 Page 2 of 55 SC No. 215/2023 STATE Vs. KAISHER & ANR. FIR No. 325/2023 (Nand Nagri) U/s 21(b) NDPS Act JUDGMENT
CASE OF THE PROSECUTION
1. Brief facts of the present case as per charge-sheet are that on 14.05.2023 at about 8:30 pm, both the accused persons namely Kaisher and Aakil were found standing in suspicious condition at Peeli Mitti Park, Sunder Nagri, Delhi. They were apprehended by HC Subhash, Ct. Paramjeet and Ct. Mukesh who were on patrolling duty on that day as they tried to run away on seeing the said police officials. Separate notices U/s 50 NDPS Act were served upon them, but they refused to get themselves searched before the Gazetted Officer or the Magistrate. Thereafter, the search was conducted and accused Kaisher was found in possession of a transparent plastic polythene in right pocket of his wearing jeans containing smack (reddish colour substance) weighing about 33.61 grams and accused Aakil was found in possession of a transparent plastic polythene in right pocket of his wearing jeans containing smack (reddish colour substance) weighing about 67.47 grams. On the basis of which, the present FIR was registered U/s 21 NDPS Act. The contraband was seized and accused persons were arrested. The sampling of the contraband U/s 52A NDPS Act was done and sent to FSL. FSL report dated 31.07.2023 has been received wherein it is mentioned that the samples are containing Diacetylmorphine, Acetaminophen, Codeine, Acetylcodeine, 6- Monoacetylmorphine, Trimethoprim & Alprazolam.
DLSH010043812023 Page 3 of 55 SC No. 215/2023STATE Vs. KAISHER & ANR.
FIR No. 325/2023(Nand Nagri) U/s 21(b) NDPS Act INVESTIGATION & OTHER PROCEEDINGS
2. Upon completion of investigation, on 14.07.2023 charge-sheet was filed against accused persons namely Kaisher and Aakil U/s 21 NDPS Act.
CHARGE
3. Vide order on charge dated 30.10.2023, charges U/s 21(b) NDPS Act were framed against accused persons namely Kaisher and Aakil.
PROSECUTION EVIDENCE
4. To substantiate the aforementioned charge, the prosecution presented 15 witnesses. The details of these witnesses, alongwith the documents they presented during their testimonies, are listed below in tabular form:
PW number Brief role of Documents Description and name of witness exhibited witness PW-1 ASI Duty Officer Ex. PW-1/1 Print out of copy of FIR Praveen (OSR) Kumar Ex. PW-1/2 Endorsement on rukka Ex. PW-1/3 Certificate U/s 65-B of the Evidence Act Ex. PW-1/4 Copy of GD Entry No. 0008A regarding registration of FIR Ex. PW-1/5 GD No. 0010A (OSR) PW-2 HC Member of Ex. PW-2/1 Statement of this witness recorded by SI Subhash patrolling party Ankur Sharma.
and one of the Ex. PW-2/2 Carbon copy of notice U/s 50 NDPS Act recovery served upon accused Kaisher.
DLSH010043812023 Page 4 of 55 SC No. 215/2023STATE Vs. KAISHER & ANR.
FIR No. 325/2023(Nand Nagri) U/s 21(b) NDPS Act witness. Ex. PW-2/3 Carbon copy of notice U/s 50 NDPS Act served upon accused Aakil.
Ex. PW-2/4 Seizure memo of case property.
Ex. PW-2/5 Site plan.
Ex. PW-2/6 Personal search memo of accused Aakil.
Ex. PW-2/7 Personal search memo of accused Kaisher.
Ex. PW-2/8 Arrest memo of accused Kaisher.
Ex. PW-2/9 Arrest memo of accused Aakil.
Ex. PW-2/10 Disclosure statement of both the accused & Ex. PW- persons.
2/11, respectively.
Ex. PW-2/12 Original notice U/s 50 NDPS Act addressed to accused Kaisher.
Ex. PW-2/13 Original notice U/s 50 NDPS Act addressed to accused Aakil.
Ex. P-1 & Ex. Contraband recovered from the accused P-2. Kaisher and container having serial no. A1. Ex. P-3 & Ex. Contraband recovered from the accused P-4. Aakil and container having serial no. A2.
PW-3 HC MHC(M) Ex. PW-3/A Copy of original store room register (Part-I) Pradeep (OSR) of the year 2023 containing entry/ mad no.
4794.
Ex. PW-3/B Copy of RC No. 149/21/23 qua handing (OSR) over of sealed parcels to SI Ankur Singh for the purpose of sampling of the contraband before Ld. MM.
Ex. PW-3/C Copy of RC No. 154/21/23 qua depositing (OSR) of sealed parcels Mark S1 & S2 in FSL.
Ex. PW-3/D Copy of acknowledgment of FSL.
(OSR)
PW-4 Ct. Member of
Paramjeet patrolling party
and one of the
recovery
DLSH010043812023 Page 5 of 55
SC No. 215/2023
STATE Vs. KAISHER & ANR.
FIR No. 325/2023
(Nand Nagri)
U/s 21(b) NDPS Act
witness.
PW-5 Ct. Member of
Mukesh patrolling party
Kumar and one of the
recovery
witness who
informed the
Duty Officer
qua
apprehension of
accused
persons.
PW-6 Sh. Photographer Ex. PW-6/1 to Photographs of sampling proceedings
Sushil who had taken Ex. PW-6/23 before the Court of Ld. MM, Karkardooma
Pandey photographs of Courts.
the sampling
proceedings
PW-7 SI Further
Ankur Singh investigation of
the present case
was marked to
him by the IO.
He moved an
application for
sampling of the
recovered
contraband
before Ld. MM.
He deposited
the case
property with
MHC(M) and
later on, sent the
exhibits to FSL.
PW-8 SHO, P.S. Nand Ex. PW-8/A Inventory of seized contraband.
Inspector Nagri who Mark-8A Report U/s 57 NDPS Act prepared by SI
Randhir conducted Ankur Sharma regarding recovery of
Singh proceedings U/s contraband and arrest of accused persons
55 NDPS Act. which was forwarded by him to ACP Sub-
DLSH010043812023 Page 6 of 55
SC No. 215/2023
STATE Vs. KAISHER & ANR.
FIR No. 325/2023
(Nand Nagri)
U/s 21(b) NDPS Act
Division, Nand Nagri.
PW-9 HC Duty Officer Ex. PW-9/A DD No. 97A in CCTNS regarding
Ankit apprehension of two persons and suspecting
that they are carrying the contraband.
PW-10 SI He reached the Ex. PW-10/A Rukka.
Ankur spot on Ex. PW-10/B DD No. 111A.
Sharma receiving DD
No. 97A,
prepared and
served notices
U/s 50 NDPS
Act on the
accused
persons,
recovered
contraband,
sealed and
seized the case
property,
prepared rukka,
prepared site
plan at the
instance of HC
Subhash,
arrested accused
persons,
conducted
personal search
of accused
persons wherein
he recovered
original notice
U/s 50 NDPS
Act apart from
other articles,
recorded
disclosure
statements of
accused
persons, took
PC remand of
DLSH010043812023 Page 7 of 55
SC No. 215/2023
STATE Vs. KAISHER & ANR.
FIR No. 325/2023
(Nand Nagri)
U/s 21(b) NDPS Act
accused
persons,
prepared report
U/s 57 NDPS
Act.
PW-11 SI Further
Niraj Singh investigation of
the case was
marked to him.
He prepared
charge-sheet
and submitted
the same before
the Court. After
obtaining FSL
result, he also
prepared
supplementary
charge-sheet
and submitted
the same before
the Court.
PW-12 ASI Chitthamunshi PW-12/A Print out of duty assigned to the officials
Omvir in P.S. Nand (Colly, including HC Subhash Kumar, Ct.
Nagri. running into Paramjeet and Ct. Mukesh Kumar (who
09 pages) were assigned emergency duty as crack
team) on that day to the IO of the present
case.
PW-13 ASI Reader to ACP, Ex. PW-13/A Copy of DD No. 97 and corresponding Uday Sub-Division & Ex. PW- entry regarding the same in Dak Register at Kumar Nand Nagri. 13/B (OSR). serial no. 2108.
Ex. PW-13/C Report U/s 57 NDPS Act and and Ex. PW- corresponding entry regarding the same in 13/D (OSR) Dak Register at serial no. 2111.
PW-14 Sh. ACP, Sub-
J.S. Mehta Division Nand
Nagri.
PW-15 Sh. Expert witness Ex. PW-15/A His detailed report dated 31.07.2023.
Jitendra from FSL (running into DLSH010043812023 Page 8 of 55 SC No. 215/2023 STATE Vs. KAISHER & ANR. FIR No. 325/2023 (Nand Nagri) U/s 21(b) NDPS Act Kumar, Sr. two pages) Scientific Officer (Chemistry) Admitted documents Ex. AD-1 & Sampling proceedings U/s 52A NDPS Act
(Admitted on 17.09.2025 by Ex. AD-2 conducted by Sh. Dev Chaudhary, Ld. MM Ld. Counsel for on 01.06.2023.
accused persons on their behalf U/s 330 BNSS/ 294 Cr.P.C.) After examining the depositions of the witnesses mentioned in the table above, it is found that they gave evidence about the undermentioned facts for the prosecution:-
5. PW-1 ASI Praveen Kumar deposed that on 15.05.2023, he was posted at P.S. Nand Nagri as ASI and was working as Duty Officer from 12:00 midnight to 8:00 am. At about 1:30 am HC Subhash brought the rukka sent by SI Ankur Sharma, contents of which were dictated by this witness to the Computer Operator and the FIR was registered vide FIR No. 325/2023, U/s 21 NDPS Act and computerized copy of FIR was obtained. This witness had handed over the copy of FIR and the original rukka to HC Subhash to hand over the same to SI Ankur Sharma for investigation purpose. The copy of FIR is Ex. PW-1/1 bearing signature of this witness at Point-A (OSR). He had made endorsement on the rukka and the same is Ex. PW-1/2 bearing his signature at Point-A. He had also send the copy of the FIR to senior police officers for information. In this regard the certificate U/s 65B of the Evidence Act is Ex. PW-1/3 bearing his signature at Point-A. Copy of GD entry no. 0008A DLSH010043812023 Page 9 of 55 SC No. 215/2023 STATE Vs. KAISHER & ANR.
FIR No. 325/2023(Nand Nagri) U/s 21(b) NDPS Act regarding registration of FIR is Ex. PW-1/4.
On seeing GD No. 0010A dated 15.05.2023 having time of recording 02:27:18 hours, this witness stated that this GD entry is available in the register which has been brought by him. He further submitted that this GD entry has been made by the SHO Inspector Randhir Singh. The GD is compared with the register brought by the witness and the aforesaid GD entries are identical. GD No. 0010A is Ex. PW-1/5 (OSR).
6. PW-2 HC Subhash deposed that on 14.05.2023 he was posted as HC at P.S. Nand Nagari. On that day, he, Ct. Paramjit and Ct. Mukesh were on patrolling duty in the area of P.S. Nand Nagri. During patrolling at around 8:30 pm, when they reached at Pilimiti Park, Sunder Nagri Delhi, they saw that two boys were standing there in suspicious condition and when they asked them about there presence, both of them become nervous. Both of them started running from the spot by holding their pockets. They suspect that some contraband may be in their possession and thereafter, this witness with the help of both constables overpowered both the boys. This witness informed the Duty Officer of P.S. Nand Nagri at about 9:00 pm and told the circumstances.
It is stated by him that on enquiry the name of one of the person was revealed as Kaisher and name of other person was revealed as Aakil. This witness correctly identified both the accused persons in the Court today.
It is stated by him that SI Ankur Sharma came at the spot from P.S. Nand Nagri and this witness had produced both the accused persons before SI Ankur Sharma and narrated him the circumstances of the case. The IO recorded DLSH010043812023 Page 10 of 55 SC No. 215/2023 STATE Vs. KAISHER & ANR.
FIR No. 325/2023(Nand Nagri) U/s 21(b) NDPS Act statement of this witness on computer. Statement of this witness is Ex. PW-2/1 bearing his signature at Point-A. It is stated by him that IO SI Ankur Sharma made inquiries from both the accused persons. IO requested 4-5 public persons to join the investigation, but none agreed to join the investigation and left the spot without disclosing their names and addresses, by seeking their personal excuses.
It is stated by him that IO told to the Kaisher that the police is suspected that he (accused Kaisher) might be in possession of contraband substance and that police party has to take his search. IO also informed accused Kaisher that he is having legal right to have been searched before the Magistrate or Gazetted Officer and further if he required then the Gazetted Officer or the Magistrate can be requested to come at the spot. The IO had also told the accused that accused can take search of the police party and their vehicle before giving his search. Thereafter, IO served the notice U/s 50 NDPS Act to accused Kaisher and contents thereof were explained to the accused, which were understood by the accused. However, the accused refused to take search of the police party or their vehicles and had also refused to give his search before Gazetted Officer or Magistrate. The notice U/s 50 NDPS Act is Ex. PW-2/2 having signature of accused at Point-A. The notice also bears signature of this witness at Point-B. The reply of accused was written by the IO as per dictation of accused and contents thereof were read and explained to the accused. The reply/ denial of the accused is marked 'X to X1', which bears signature of accused at Point-C on the said notice. Thereafter, IO asked accused Kaisher to produce whatever he is keeping with him. The accused however showed DLSH010043812023 Page 11 of 55 SC No. 215/2023 STATE Vs. KAISHER & ANR.
FIR No. 325/2023(Nand Nagri) U/s 21(b) NDPS Act reluctance. The IO took his search, wherein one transparent polythene was recovered from right pocket of his wearing jeans pant. In the said plastic polythene one reddish colour substance was found, which was appearing to be like smack by its physical characteristics. IO weighed the above reddish substance with polythene by placing the same on paper with the help of weighing machine, after turning the weight of paper zero. On measuring the weight of the above reddish substance alongwith polythene came to 33.61 grams. IO kept the polythene containing smack into a pullanda by putting the same into plastic dibba which was given serial no. A1 and IO put seal of AS on the pullanda.
It is stated by him that IO interrogated the other accused Aakil. The IO told to the Aakil that the police is suspected that accused Aakil might be in possession of contraband substance and that police party has to take his search. The IO also informed the accused that he is having legal right to have been searched before the Magistrate or Gazetted Officer and further if he required then the Gazetted Officer or the Magistrate can be requested to come at the spot. The IO had also told the accused that accused can take search of the police party and their vehicle before giving his search. Thereafter, the IO served the notice U/s 50 NDPS Act to the accused Aakil and contents thereof were explained to the accused, which were made understand by the accused. However, the accused refused to take search of the police party or their vehicles and had also refused to give his search before Gazetted Officer or Magistrate. The notice U/s 50 NDPS Act is Ex. PW-2/3 having thumb impression of accused at Point-A. The notice also bears signature of this witness at Point-B. The reply of accused DLSH010043812023 Page 12 of 55 SC No. 215/2023 STATE Vs. KAISHER & ANR.
FIR No. 325/2023(Nand Nagri) U/s 21(b) NDPS Act was written by the IO as per dictation of accused and contents thereof were read and explained to the accused. The reply/ denial of the accused is marked 'X to X1', which bears thumb impression of accused at Point- C on the said notice. Thereafter, IO asked the accused Aakil to produce whatever he is keeping with him. The accused however showed reluctance. The IO took his search, wherein one transparent polythene was recovered from right pocket of his wearing pant of light blue colour. In the said plastic polythene one reddish colour substance was found, which was appearing to be like smack by its physical characteristics. IO weighed the above reddish substance with polythene by placing the same on paper with the help of weighing machine, after turning the weight of paper zero. On measuring the weight of the above reddish substance alongwith polythene came to 67.47 grams. IO kept the polythene containing smack into a pullanda by putting the same into plastic dibba which was given serial no. A2 and IO put seal of AS on the pullanda.
It is stated by him that the seal after use was handed over to Ct. Mukesh. Thereafter, IO seized the aforesaid case property vide seizure memo Ex. PW-2/4. Thereafter, IO prepared the rukka and handed over the original rukka to this witness alongwith the carbon copy of seizure memo, FSL form and the case property to hand over the rukka to the DO and the remaining things to SHO. Thereafter, this witness left the spot at about 1:20 am for going to P.S. Nand Nagri. After reaching Police Station, this witness handed over the original rukka to the Duty Officer for registration of FIR and thereafter this witness went to SHO and produced before him the copy of seizure memo, FSL form and sealed pullandas. Thereafter, at about 1:50-1:55 am, this witness left the Police DLSH010043812023 Page 13 of 55 SC No. 215/2023 STATE Vs. KAISHER & ANR.
FIR No. 325/2023(Nand Nagri) U/s 21(b) NDPS Act Station alongwith copy of FIR and original rukka for going to the place of incident and after reaching the spot, this witness handed over the same to SI Ankur Sharma. SI Ankur Sharma prepared the site plan at instance of this witness and same is Ex. PW-2/5 which bears signature of this witness at Point- A. Thereafter, the personal search of accused persons was conducted by the IO one by one. Rs. 250/-, mobile phone, ticket of UPSRTC and original notice U/s 50 NDPS Act recovered from accused Aakil. From the personal search of accused Kaisher, Rs. 300/-, one mobile phone and original notice U/s 50 NDPS Act recovered from accused. The personal search memo of accused Aakil is Ex. PW-2/6. The personal search memo of accused Kaisher is Ex. PW-2/7.
Thereafter, IO arrested the accused Kaisher at about 2:35 am and prepared the arrest memo which is Ex. PW-2/8. Thereafter, IO arrested the accused Aakil at about 2:40 am and prepared the arrest memo which is Ex. PW- 2/9. IO recorded the disclosure statement of both the accused persons, same are Ex. PW-2/10 and Ex. PW-2/11, respectively.
It is stated by him that his statement U/s 161 Cr.P.C. was recorded by the IO after returning in P.S. Nand Nagri.
MHC(M) has produced one original notice U/s 50 NDPS Act qua accused Kaisher, the same is Ex. PW-2/12 which bears signature of this witness at Point-A (the original notice is taken on judicial record) and one original notice U/s 50 NDPS Act qua accused Aakil, the same is Ex. PW-2/13 which bears signature of this witness at Point-A (the original notice is taken on judicial record).
MHC(M) produced two sealed plastic containers which are lying DLSH010043812023 Page 14 of 55 SC No. 215/2023 STATE Vs. KAISHER & ANR.
FIR No. 325/2023(Nand Nagri) U/s 21(b) NDPS Act closed with the help of doctor tape and serial nos. A1 and A2 are mentioned on the containers besides the particulars of the present case FIR. On the container bearing serial no. A1 is having two seal impression of DC besides signatures of the Ld. Magistrate in green ink.
On the container bearing serial no. A2 is having one seal of impression of DC, besides signatures of the Ld. Magistrate in green ink.
MHC(M) has also produced two yellow colour envelopes bearing the particulars of the present case and FSL No. SFSL DLH/7035/CH/2168/23 and the parcels are having mentioned number of parcel as Parcel S-1 and Parcel S-2 and both the parcels are duly sealed with the seal of JK FSL DELHI.
It is stated by him that the container A1 is opened with the permission of the Court after removal of the seal. From the container one transparent polythene containing some substance of reddish brown colour which is appearing wet in condition. The same is shown to the witness. Witness correctly identified the same and stated it was the smack which was recovered from the possession of accused Kaisher. The smack in the container is Ex. P-1 and container is Ex. P-2.
It is stated by him that the container A2 is opened with the permission of the Court after removal of the seal. From the container one transparent polythene containing some substance of reddish brown colour which is appearing wet/ liquid like in condition. The same is shown to the witness. Witness correctly identified the same and stated it was the smack which was recovered from the possession of accused Aakil. The smack in the container is Ex. P-3 and container is Ex. P-4.
DLSH010043812023 Page 15 of 55 SC No. 215/2023STATE Vs. KAISHER & ANR.
FIR No. 325/2023(Nand Nagri) U/s 21(b) NDPS Act (The yellow colour envelopes were not opened and returned to the MHC(M).
During his cross-examination on behalf of accused persons, he could not tell the DD number vide which they left the Police Station for patrolling. It is stated by him that they were patrolling on foot. It is admitted by him that the place of apprehension of accused persons is a public place. It is stated by him that no public person gathered after the apprehension of accused persons. It is stated by him that he has informed DO ASI Praveen qua apprehension of accused persons. It is stated by him that the distance between place of apprehension of accused persons and the Police Station was about 500- 600 meters.
7. PW-3 HC Pradeep deposed that on intervening night of 14- 15.05.2023, he was performing his duty as MHC(M) at P.S. Nand Nagri. On that day at about 2:15-2:20 am, SHO/ Inspector Randhir Singh called this witness in his office and handed over to this witness two sealed parcels and carbon copy of seizure memo on which the SHO has already put the FIR number and his signatures. The pullandas were already sealed with the seals of AS and RS and parcels have already been marked as A1 and A2. This witness made entry in register no.19 at serial no. 4794.
It is stated by him that he has brought original store room register (Part-I) of the year 2023. This witness has shown entry/ mad number 4794. The copy of the same is Ex. PW-3/A (OSR). Inspector Randhir Singh also countersigned the entry in register no.19. Inspector Randhir Singh also DLSH010043812023 Page 16 of 55 SC No. 215/2023 STATE Vs. KAISHER & ANR.
FIR No. 325/2023(Nand Nagri) U/s 21(b) NDPS Act deposited copy of notice U/s 50 NDPS Act in the maalkhana.
On the same day, SI Ankur deposited personal search articles of the accused persons in the maalkhana.
The entry Ex. PW-3/A on register no.19 bears signature of Inspector Randhir Singh at Point-A. It is stated by him that on 01.06.2023, this witness handed over two sealed parcels to SI Ankur Singh for the purpose of sampling before Ld. MM. Thereafter, SI Ankur Singh deposited four sealed parcels Mark A1, A2 and S1, S2 at the maalkhana alongwith copy of orders of the Court.
In his further examination-in-chief recorded on 17.04.2025, this witness stated that on 01.06.2023, he handed over the sealed parcels to SI Ankur Singh for the purpose of sampling of the contraband before Ld. MM vide RC No. 149/21/23. Copy of RC No. 149/21/23 is Ex. PW-3/B (OSR) which bears signature of this witness at Point-A. It is stated by him that on 06.06.2023 on the directions of IO, he went to FSL Rohini alongwith two sealed parcels Mark S1 and S2, sealed with the seal of DC and one sample seal of DC pertaining to the present case and deposited the same vide RC No. 154/21/23. This witness also obtained acknowledgment of FSL. Copy of RC No. 154/21/23 is Ex. PW-3/C (OSR) which bears signatures of this witness at Points A & B. Copy of acknowledgment of FSL is Ex. PW-3/D (OSR) which bears signature of this witness at Point-A. It is stated by him that till the time the case properties were in his possession, the same have not been tampered with.
DLSH010043812023 Page 17 of 55 SC No. 215/2023STATE Vs. KAISHER & ANR.
FIR No. 325/2023(Nand Nagri) U/s 21(b) NDPS Act
8. PW-4 Ct. Paramjeet deposed that on 14.05.2023 he was posted as Constable at P.S. Nand Nagri. On that day, he alongwith HC Subhash and Ct. Mukesh were on patrolling duty in the area of P.S. Nand Nagri on foot. At around 8.30 pm, when they reached at Pilimiti Park, Sunder Nagri Delhi, they saw that two boys were standing there in suspicious condition. When they approached towards that boys, they started running from the spot by holding pockets of their wearing pants. They (police officials) suspect that some contraband may be in their possession and thereafter they chased that boys and apprehended them. HC Subhash informed the duty officer of the P.S. Nand Nagri at about 9.00 pm and told the circumstances to him.
This witness deposed almost on the same lines as deposed by PW-2 HC Subhash.
It is further deposed by him that no notice could be served upon public persons who refused to join the investigation, due to paucity of time.
IO SI Ankur Sharma served upon one copy of the notice U/s 50 NDPS Act to the accused Kaisher and contents thereof were explained to the accused in simple language. However, the accused refused to take search of the police party and had also refused to get himself searched before Gazetted Officer or Magistrate. Copy of notice U/s 50 NDPS Act is already Ex. PW-2/2 having signature of accused at Point-A as receipt of original notice, the notice also bears carbon impressions of signature of this witness at Point-D. The reply of accused was written by the IO as per dictation of accused and contents thereof were read and explained to the accused. The reply/ denial of the accused DLSH010043812023 Page 18 of 55 SC No. 215/2023 STATE Vs. KAISHER & ANR.
FIR No. 325/2023(Nand Nagri) U/s 21(b) NDPS Act is marked 'X to X1, which bears signature of accused at Point-C on the said notice.
Thereafter, IO asked the accused Kaisher to produce whatever he is keeping with him. The accused however showed reluctance and told that he is carrying one polythene containing smack. The IO took his search, wherein one transparent polythene was recovered from right pocket of his wearing jeans pant. In the said plastic polythene reddish colour substance was found, which was appearing to be like smack by its physical appearance and taste. IO tested the contraband on field testing kit and it was found to be smack. IO weighed the above reddish substance with polythene by placing the same on paper with the help of weighing machine, after turning the weight of paper zero. The weight was found to be 33.61 grams. IO kept the polythene containing smack into a transparent plastic box which was given serial no. A1 and IO put seal of AS on the pullanda.
Thereafter, IO SI Ankur Sharma told to accused Aakil that they are suspecting that he might be carrying contraband and that police party has to take his search. The IO also informed the accused Aakil that he has legal right to get himself searched before the Magistrate or Gazetted Officer and further if he required then the Gazetted Officer or the Magistrate can be requested to come at the spot. The IO had also told the accused that accused can take search of the police party before giving his search.
Thereafter, IO SI Ankur Sharma served upon one copy of the notice U/s 50 NDPS Act to the accused Aakil and contents thereof were explained to the accused in simple language. However, the accused refused to DLSH010043812023 Page 19 of 55 SC No. 215/2023 STATE Vs. KAISHER & ANR.
FIR No. 325/2023(Nand Nagri) U/s 21(b) NDPS Act take search of the police party and had also refused to get himself searched before Gazetted Officer or Magistrate. Copy of notice U/s 50 NDPS Act is already Ex. PW-2/3 having signature of accused at Point-A as receipt of original notice, the notice also bears carbon impressions of signature of this witness at Point-D. The reply of accused was written by the IO as per dictation of accused and contents thereof were read and explained to the accused. The reply/ denial of the accused is marked 'X to X1', which bears signature of accused at Point-C on the said notice.
Thereafter, IO asked the accused Aakil to produce whatever he is keeping with him. The accused however showed reluctance and that he is carrying one polythene bag containing smack. The IO took his search and one transparent polythene was recovered from right pocket of his wearing jeans pant of blue colour. In the said plastic polythene one reddish colour substance was found, which appeared to be like smack by its physical appearance and taste. SI Ankur Sharma tested the same through field testing kit and it was found to be heroin.
IO weighed the above reddish substance with polythene by placing the same on paper with the help of weighing machine, after turning the weight of paper zero. On measuring the weight of the above reddish substance alongwith polythene came to 67.47 grams. IO kept the polythene containing smack in a transparent plastic box which was given serial no. A2 and IO put seal of AS on the pullanda.
Thereafter, IO prepared the rukka and handed over the original rukka to HC Subhash alongwith the carbon copy of seizure memo and sealed DLSH010043812023 Page 20 of 55 SC No. 215/2023 STATE Vs. KAISHER & ANR.
FIR No. 325/2023(Nand Nagri) U/s 21(b) NDPS Act parcels with directions to hand over the rukka to the DO and the remaining things to SHO. Thereafter, HC Subhash left the spot. After sometime he came back at the spot and handed over copy of FIR and original rukka to SI Ankur Sharma. SI Ankur Sharma prepared the site plan at the instance of HC Subhash.
Thereafter, IO arrested the accused persons namely Kaisher and Aakil and prepared the arrest memos already Ex. PW-2/8 and Ex. PW-2/9 bearing signature of this witness at Point-B, respectively. They were also personally searched vide personal search memos already Ex. PW-2/7 and Ex. PW-2/6 bearing signature of this witness at Point B, respectively.
From the personal search of accused Aakil, Rs. 250/-, mobile phone, ticket of UPSRTC and original notice U/s 50 NDPS Act were recovered.
From the personal search of accused Kaisher, Rs. 300/-, Samsung mobile phone and original notice U/s 50 NDPS Act were recovered.
IO recorded the disclosure statement of both the accused persons already Ex. PW-2/10 and Ex. PW-2/11, respectively and both bear signature of this witness at Point-B. Statement U/s 161 Cr.P.C. of this witness was recorded by the IO after returning in P.S. Nand Nagri.
The original notices U/s 50 NDPS Act recovered during personal search of accused persons already Ex. PW-2/12 and Ex. PW-2/13 bear signature of this witness at Point-B, respectively.
The sampling proceedings U/s 52A NDPS Act has already been conducted before Ld. MM. Production of case properties is therefore dispensed DLSH010043812023 Page 21 of 55 SC No. 215/2023 STATE Vs. KAISHER & ANR.
FIR No. 325/2023(Nand Nagri) U/s 21(b) NDPS Act with.
The case properties have also been exhibited during the testimony of PW-2 HC Subhash.
During his cross-examination on behalf of accused persons, it is stated by him that on 14.05.2023 he came to P.S. Nand Nagri at about 6:00-7:00 pm for joining his duty. It is stated by him that they were patrolling on foot. It is stated by him that HC Subhash has informed the Duty Officer at about 9:00 pm in his presence. It is stated by him that distance between the Police Station and the spot was about 600-700 meters. It is admitted by him that public persons were passing by through the spot. It is stated by him that IO had not served any written notice to the public persons who refused to join the investigation, in his presence. It is stated by him that no CCTV cameras were found installed near the spot.
9. PW-5 Ct. Mukesh Kumar deposed that on 14.05.2023 he was posted as Constable at P.S. Nand Nagri. On that day, he alongwith HC Subhash and Ct. Paramjeet were on patrolling duty in the area of P.S. Nand Nagri on foot. They reached at Pilimiti Park, Sunder Nagri, Delhi while patrolling and at around 8:30 pm, they saw that two persons were standing there and they shuddered on seeing them. When they approached towards that two persons, they started running from the spot by holding pockets of their wearing pants. They suspected that that two persons may be carrying some illegal thing in their possession and therefore, they chased the said persons and apprehended them.
HC Subhash informed the Duty Officer of P.S. Nand Nagri at about DLSH010043812023 Page 22 of 55 SC No. 215/2023 STATE Vs. KAISHER & ANR.
FIR No. 325/2023(Nand Nagri) U/s 21(b) NDPS Act 9:00 pm about the apprehension of the said persons and also told the circumstances to him.
He deposed almost on the same lines as deposed by PW-2 HC Subhash and PW-4 Ct. Paramjeet on all other aspects.
He further stated that after some time SI Ankur Sharma came at the spot from P.S. Nand Nagri and HC Subhash had produced both the accused persons before this witness and informed him about the circumstances in which they were apprehended. SI Ankur Sharma recorded statement of HC Subhash on laptop.
It is stated by him that IO asked the accused Kaisher to produce whatever he is keeping with him. The accused however avoided the same and told that he is carrying one polythene containing smack. The IO took his search and one transparent polythene was recovered from right pocket of his wearing jeans pant. Upon checking the said plastic polythene, it was found containing reddish colour substance, which appeared to be heroin. IO tested the contraband on field testing kit and it was found to be heroin.
It is stated by him that IO SI Ankur Sharma served upon one copy of the notice U/s 50 NDPS Act to the accused Aakil and contents thereof were explained to the accused in simple language. However, the accused refused to take search of the police party and had also refused to get himself searched before Gazetted Officer or Magistrate saying that he does not want to create an evidence against him. Copy of notice U/s 50 NDPS Act already Ex. PW-2/3 bearing signature of accused at Point-A as receipt of original notice, the notice also bears carbon impressions of signature of this witness at Point-E. The reply DLSH010043812023 Page 23 of 55 SC No. 215/2023 STATE Vs. KAISHER & ANR.
FIR No. 325/2023(Nand Nagri) U/s 21(b) NDPS Act of accused was written by the IO as per dictation of accused and contents thereof were read and explained to the accused. The reply/ denial of the accused is marked 'X to X1, which bears signature of accused at Point-C on the said notice.
It is stated by him that IO asked the accused Aakil to produce whatever he is carrying with him. The accused however avoided the same and told that he is carrying one polythene containing smack. The IO took his search and one transparent polythene was recovered from right pocket of his wearing jeans pant. Upon checking the said plastic polythene, it was found containing reddish colour substance, which appeared to be heroin. IO tested the contraband on field testing kit and it was found to be heroin. IO weighed the above reddish substance with polythene by placing the same on paper with the help of weighing machine, after turning the weight of paper zero. The weight was found to be 67.47 grams. IO kept the polythene containing smack into a transparent plastic box which was given serial no. A1 and IO put seal of AS on the pullanda.
It is stated by him that accused persons were brought back to the Police Station alongwith sealed parcels.
During his cross-examination on behalf of accused persons, it is stated by him that on 14.05.2023 he was residing in the barracks of P.S. Nand Nagri. It is stated by him that they were patrolling in a private vehicle. It is stated by him that distance between the Police Station and the spot was about 1- 1.5 Kms.
DLSH010043812023 Page 24 of 55 SC No. 215/2023STATE Vs. KAISHER & ANR.
FIR No. 325/2023(Nand Nagri) U/s 21(b) NDPS Act
10. PW-6 Sh. Sushil Pandey deposed that he is working as cab driver. He is also working as a photographer at Anant Films, Ashok Vihar, Delhi. Owner of said Anant Films is Mr. Tejbir. On 01.06.2023, on the directions of Mr. Tejbir, this witness went to P.S. Nand Nagri, where he accompanied the police to the Court of Ld. MM, Karkardooma Courts, where Ld. MM has conducted the sampling proceedings. This witness took 26 photographs of the sampling proceedings from DSLR/ digital camera make Canon. After developing the photographs, this witness handed over the said photographs to the police. The photographs are Ex. PW-6/1 to Ex. PW-6/26.
11. PW-7 SI Ankur Singh deposed that on 20.05.2023, he was posted at P.S. Nand Nagri. On that day, further investigation of the case was marked to him by the SHO and he obtained the case file from MHC(R).
It is stated by him that on 22.05.2023, he moved an application for sampling of the recovered contraband before Ld. MM and the date was fixed for 01.06.2023 for this purpose.
It is stated by him that on 23.05.2023, after taking permission for out of station, he went to Badayu to search for the source of contraband, as per disclosure statements of the accused persons, but in vain.
It is stated by him that on 01.06.2023, he obtained the sealed parcels Marks A1 and A2 from the MHC(M) and he went to the Court of Sh. Dev Chaudhary, Ld. MM, KKD Courts. Photographer Sushil was also present and both the accused persons were produced from J/C. Ld. MM conducted the sampling proceedings and on his directions, this witness has drawn two samples DLSH010043812023 Page 25 of 55 SC No. 215/2023 STATE Vs. KAISHER & ANR.
FIR No. 325/2023(Nand Nagri) U/s 21(b) NDPS Act from each of the parcel of the contraband, which were marked as S1 and S2. All the four parcels were then sealed with the seal of Ld. MM i.e. seal of DC. Ld. MM also provided his sample seal to this witness. This witness deposited all the four sealed parcels, sample seal with MHC(M).
It is stated by him that he prepared the forwarding letter of the contraband for analysis at FSL. On 06.06.2023, he sent the exhibits to FSL for analysis. On 13.06.2023, he was transferred from the Police Station and he submitted the case file with MHC(R).
12. PW-8 Inspector Randhir Singh deposed that on 14.05.2023, he was posted at P.S. Nand Nagri as SHO. Duty officer informed this witness regarding apprehension of accused persons with contraband and he marked the DD to SI Ankur Sharma for necessary action.
It is stated by him that at about 2:00 am, HC Subhash came to his office and handed over to him two sealed parcels sealed with the seal of 'AS' and having Marks A1 and A2 alongwith FSL Form having seal of AS and carbon copy of seizure memo. This witness affixed his seal on the said parcels with his seal of RS. After confirming the FIR Number from the Duty Officer, this witness wrote the same on both the parcels and copy of seizure memo. This witness also signed on both the parcels and copy of seizure memo. He then called the MHC(M) CP alongwith register no.19 in his office and MHC(M) has made entry of all the details in the register no.19 and this witness handed over sealed parcels and copy of seizure memo to MHC(M) CP. This witness also signed at Point-A against the relevant entry in register no.19 which is already DLSH010043812023 Page 26 of 55 SC No. 215/2023 STATE Vs. KAISHER & ANR.
FIR No. 325/2023(Nand Nagri) U/s 21(b) NDPS Act Ex. PW-3/A. He prepared inventory of seized contraband which is Ex. PW-8/A bearing his signature at Point-A. In this regard, he lodged a GD vide no. 10A at about 2:27 am dated 15.05.2023 and the same is already Ex. PW-1/5 bearing his signature at Point-A. It is stated by him that he had also forwarded one report dated 16.05.2023 U/s 57 NDPS Act prepared by SI Ankur Sharma regarding recovery of contraband and arrest of accused persons to ACP, Sub-Division Nand Nagri. The said report is Mark-8A bearing signature of this witness at Point-A.
13. PW-9 HC Ankit deposed that on 14.05.2023 he was posted at P.S. Nand Nagri and was working as Duty Officer and his duty hours were from 4:00 pm to 12:00 midnight. At about 9:00 pm, HC Subhash telephonically informed this witness that they have apprehended two persons and suspecting that they are carrying the contraband. This witness informed about the same to SHO who after talking to ACP appointed SI Ankur to go to the spot alongwith IO kit etc. This witness lodged DD No. 97A in CCTNS which is Ex. PW-9/A bearing his signature at Point-A.
14. PW-10 SI Ankur Sharma deposed that on 14.05.2023 he was posted as SI at P.S. Nand Nagri. On that day, on receiving DD No. 97A, he reached near Pili Mitti Park, Sunder Nagri, Delhi in his private car alongwith IO kit, field testing kit, laptop, printer, extension cable, power source and electronic weighing machine where HC Subhash, Ct. Paramjit and Ct. Mukesh met this witness alongwith two persons namely Kaisher and Aakil.
DLSH010043812023 Page 27 of 55 SC No. 215/2023STATE Vs. KAISHER & ANR.
FIR No. 325/2023(Nand Nagri) U/s 21(b) NDPS Act This witness correctly identified both the accused persons in the Court.
It is stated by him that HC Subhash briefed this witness about the apprehension of accused persons.
It is stated by him that he requested 4-5 public persons to join the investigation, but none agreed to join the investigation and left without disclosing their names and addresses while seeking their personal excuses. No notice could be served upon them due to paucity of time.
It is stated by him that he told to accused Kaisher that they are suspecting that he might be in possession of contraband substance and that police party has to take his search. This witness also informed the Kaisher that he has legal right to get himself searched before the Magistrate or Gazetted Officer and further if he required then the Gazetted Officer or the Magistrate can be requested to come at the spot for this purpose. This witness had also told the accused that he can take search of the police party before giving his search.
Thereafter, this witness prepared notice U/s 50 NDPS Act in duplicate by using laptop and printer. He served upon original notice U/s 50 NDPS Act to the accused Kaisher and contents thereof were explained to the accused in simple language. However, the accused refused to take search of the police party and had also refused to get himself searched before Gazetted Officer or Magistrate. Accused Kaisher told that he is illiterate and can only sign. This witness wrote refusal of accused on the other copy of notice U/s 50 NDPS Act. The copy of notice U/s 50 NDPS Act already Ex. PW-2/2 bears signature of accused at Point-A as receipt of original notice, the notice also DLSH010043812023 Page 28 of 55 SC No. 215/2023 STATE Vs. KAISHER & ANR.
FIR No. 325/2023(Nand Nagri) U/s 21(b) NDPS Act bears carbon impressions of signature of this witness at Point-F. The reply of accused was written by this witness as per dictation of accused and contents thereof were read over and explained to the accused. The reply/ denial of the accused is marked 'X to X1, which bears signature of accused at Point-C on the said notice.
Thereafter, this witness asked the accused Kaisher to produce whatever he is keeping with him. The accused however showed reluctance and told that he is carrying one polythene containing smack. This witness took search of accused and one transparent polythene was recovered from right pocket of his wearing jeans pant. In the said plastic polythene reddish colour substance was found, which appeared to be smack by its physical appearance and taste. This witness tested the contraband on field testing kit and it was found to be heroin. This witness placed one paper on the electronic weighing machine, made the reading as zero and thereafter he placed the transparent polythene containing heroin on the paper. The weight was found to be 33.61 grams. This witness kept the polythene containing smack into a transparent plastic box which was given serial no. A1.
It is stated by him that he told to accused Aakil that they are suspecting that he might be in possession of contraband substance and that police party has to take his search. This witness also informed the Aakil that he has legal right to get himself searched before the Magistrate or Gazetted Officer and further if he required then the Gazetted Officer or the Magistrate can be requested to come at the spot for this purpose. This witness had also told the accused that he can take search of the police party before giving his search.
DLSH010043812023 Page 29 of 55 SC No. 215/2023STATE Vs. KAISHER & ANR.
FIR No. 325/2023(Nand Nagri) U/s 21(b) NDPS Act Thereafter, this witness prepared notice U/s 50 NDPS Act in duplicate by using laptop and printer. He served upon original notice U/s 50 NDPS Act to the accused Aakil and contents thereof were explained to the accused in simple language. However, the accused refused to take search of the police party and had also refused to get himself searched before Gazetted Officer or Magistrate. Accused Aakil told that he is illiterate. This witness wrote refusal of accused on the other copy of notice U/s 50 NDPS Act. The copy of notice U/s 50 NDPS Act already Ex. PW-2/3 bears thumb impression of accused at Point-A as receipt of original notice, the notice also bears carbon impressions of signature of this witness at Point-F. The reply of accused was written by this witness as per dictation of accused and contents thereof were read over and explained to the accused. The reply/ denial of accused is marked 'X to X1', which bears thumb impression of accused at Point-C on the said notice.
Thereafter, this witness asked the accused Aakil to produce whatever he is keeping with him. The accused however showed reluctance and told that he is carrying one polythene containing smack. This witness took search of accused and one transparent polythene was recovered from right pocket of his wearing jeans pant. In the said plastic polythene reddish colour substance was found, which appeared to be smack by its physical appearance and taste. This witness tested the contraband on field testing kit and it was found to be heroin. He placed one paper on the electronic weighing machine, made the reading as zero and thereafter, he placed the transparent polythene containing heroin on the paper. The weight was found to be 67.47 grams. This DLSH010043812023 Page 30 of 55 SC No. 215/2023 STATE Vs. KAISHER & ANR.
FIR No. 325/2023(Nand Nagri) U/s 21(b) NDPS Act witness kept the polythene containing smack into a transparent plastic box which was given serial no. A2. This witness sealed both the plastic containers after affixing doctors tape with the seal of AS.
It is stated by him that the seal after use was handed over to Ct. Mukesh. Thereafter, this witness seized the aforesaid case property vide seizure memo already Ex. PW-2/4 which bears his signature at Point-D. It is stated by him that he prepared the rukka Ex. PW-10/A on the statement of HC Subhash which bears signature of this witness at Points X and Y and handed over the original rukka to HC Subhash alongwith the carbon copy of seizure memo and sealed parcels with directions to hand over the rukka to the DO and the remaining things to SHO. Thereafter, HC Subhash left the spot.
It is stated by him that after sometime HC Subhash came back at the spot and handed over copy of FIR and original rukka to this witness. This witness prepared the site plan at the instance of HC Subhash which is already Ex. PW-2/5 which bears signature of this witness at Point-B. Thereafter, this witness arrested the accused persons namely Kaisher and Aakil and prepared the arrest memos already Ex. PW-2/8 and Ex. PW-2/9 bear signature of this witness at Point-D, respectively. They were also personally searched vide personal search memos already Ex. PW-2/7 and Ex. PW-2/6 bear signature of this witness at Point-D, respectively.
From the personal search of accused persons, apart from other articles one respective original notice each U/s 50 NDPS Act were recovered.
This witness recorded the disclosure statements of both the accused persons already Ex. PW-2/10 and Ex. PW-2/11 both bear signature of this DLSH010043812023 Page 31 of 55 SC No. 215/2023 STATE Vs. KAISHER & ANR.
FIR No. 325/2023(Nand Nagri) U/s 21(b) NDPS Act witness at Point-D, respectively.
It is stated by him that accused persons were brought back to the Police Station.
It is stated by him that the accused persons were produced before the Court and he obtained their 03 days PC remand and after their medical examination, they were brought back to the Police Station where he lodged DD No. 111A which is Ex. PW-10/B which bears signature of this witness at Point- A. During PC remand, this witness tried to search for the source of contraband, but in vain.
It is stated by him that he prepared report U/s 57 NDPS Act regarding seizure and arrest of the accused persons and submitted the same for onward transmissions to the senior officers. The report already Mark-8A bears signature of this witness at Point-B. It is stated by him that the original notices U/s 50 NDPS Act recovered during personal search of accused persons already Ex. PW-2/12 and Ex. PW-2/13 bear signature of this witness at Point-D, respectively.
It is stated by him that on 20.05.2023 he was transferred from Police Station and he submitted the case file with MHC(R).
It is stated by him that the sampling proceedings U/s 52A NDPS Act has already been conducted before Ld. MM. Production of case properties is therefore dispensed with.
During his cross-examination on behalf of accused persons, it is stated by him that he reached the spot at about 9:15 pm. It is stated by him that distance between the Police Station and the spot was about 700-800 meters. It is DLSH010043812023 Page 32 of 55 SC No. 215/2023 STATE Vs. KAISHER & ANR.
FIR No. 325/2023(Nand Nagri) U/s 21(b) NDPS Act stated by him that public persons were passing by through the spot. It is stated by him that he has not served any written notice to the public persons who refused to join the investigation. It is stated by him that no CCTV cameras were found installed near the spot.
15. PW-11 SI Niraj Singh deposed that on 22.06.2023 he was posted as SI at P.S. Nand Nagri. On that day further investigation of the case was marked to him and he obtained the case file from MHC(R). After perusal of case file, this witness found that investigation has already been completed, but FSL result was awaited. He prepared the charge-sheet and submitted the same before the Court. After obtaining FSL result, he prepared supplementary charge-sheet and submitted the same before the Court.
16. PW-12 ASI Omvir deposed that on 14.05.2023, he was posted at P.S. Nand Nagri and was working as Chittha Munshi . He was maintaining the record of duties of police officials posted at P.S. Nand Nagri. On that day, HC Subhash Kumar, Ct. Paramjeet and Ct. Mukesh Kumar were assigned Emergency Duty as Crack Team from 8:00 am to 8:00 pm. This witness handed over the print out of duty assigned to the officials on that day to the IO of the present case, the same is running into 09 pages which is Ex. PW-12/A (Colly).
17. PW-13 ASI Uday Kumar deposed that on 15.05.2023, he was working as Reader to ACP, Sub-Division Nand Nagri. On that day, copy of DD No. 97, dated 14.05.2023, P.S. Nand Nagri was received in their office. He DLSH010043812023 Page 33 of 55 SC No. 215/2023 STATE Vs. KAISHER & ANR.
FIR No. 325/2023(Nand Nagri) U/s 21(b) NDPS Act made entry in the Dak Register vide serial no. 2108. He placed the DD entry before ACP, Sh. Jasod Singh Mehta who has seen and signed the same. He has brought the copy of said DD. The DD is taken on record. The copy of DD is Ex. PW-13/A bearing signature of ACP at Point-A. The copy of entry no. 2108 in Dak Register is Ex. PW-13/B (OSR).
It is stated by him that on 16.05.2023, one report U/s 57 NDPS Act prepared by SI Ankur Sharma, dated 16.05.2023 was received in their office. He made entry in the Dak Register vide serial no. 2111. He placed the said report before ACP who has seen and signed the same. He has brought the original report U/s 57 NDPS Act. Same is taken on record. The report U/s 57 NDPS Act is Ex. PW-13/C. Copy of entry number 2111 is Ex. PW-13/D (OSR).
18. PW-14 Sh. J.S. Mehta, ACP Headquarters, North-East District deposed that on 14.05.2023, he was posted as ACP, Sub-Division Nand Nagri. On that day, at about 9:00 pm, he received a phone call from SHO, P.S. Nand Nagri regarding the apprehension about two suspects with contraband. This witness directed SHO, P.S. Nand Nagri to take appropriate legal actions.
It is stated by him that on 15.05.2023, copy of DD No. 97A, dated 14.05.2023, P.S. Nand Nagri was placed before him by his Reader. The same was seen and signed by this witness. The copy of DD already Ex. PW-13/A, bears signature of this witness at Point-A. It is stated by him that on 16.05.2023, his Reader placed before him one report U/s 57 NDPS Act prepared by SI Ankur Sharma regarding seizure of contraband and arrest of accused persons which was seen and signed by this DLSH010043812023 Page 34 of 55 SC No. 215/2023 STATE Vs. KAISHER & ANR.
FIR No. 325/2023(Nand Nagri) U/s 21(b) NDPS Act witness. The report already Ex. PW-13/C bears signature of this witness at Point-A.
19. PW-15 Sh. Jitendra Kumar, Sr. Scientific Officer (Chemistry), FSL, Rohini, Delhi deposed that he is working at FSL, Rohini since 1999. On 06.06.2023, he was posted as Sr. Scientific Officer (Chemistry) at FSL Rohini. On that day, two sealed parcels Mark S-1 and S-2, each sealed with the seals of DC in FIR No. 325/23 dated 15.05.2023, U/s 21/61/85 NDPS Act, P.S. Nand Nagri alongwith specimen seals, forwarding letter, copy of FIR, copy of seizure memo etc. were received in their office from SHO, Nand Nagri vide letter reference no. 1913/ SHO/ Nand Nagri dated 06.06.2023. Same were marked to this witness for chemical examination. The seals were intact and were tallying with specimen seal.
It is stated by him that on opening the parcel Mark S-1, it was found containing reddish brown coloured damp material stated to be contraband substance kept in a zip pouch, weight approx. 3.76 gms with zip pouch and it was marked as Ex. S-1.
It is stated by him that on opening the parcel Mark S-2 it was found containing reddish brown coloured pasty material stated to be contraband substance kept in a zip pouch, weight approx. 6.02 gms with zip pouch and it was marked as Ex. S-2.
It is stated by him that he analyzed the exhibits between 07.07.2023 to 31.07.2023. On chemical, TLC and GC-MS examination, Ex. S1 and Ex. S2 were found to contain diacetylmorphine, acetaminophen codeine, acetylcodeine, DLSH010043812023 Page 35 of 55 SC No. 215/2023 STATE Vs. KAISHER & ANR.
FIR No. 325/2023(Nand Nagri) U/s 21(b) NDPS Act 6-monoacetylmorphine, trimethoprim and alprazolam.
It is stated by him that after the examination the remnants of the exhibits were kept in separate parcels which were sealed with the seal of J.K. FSL DELHI. He prepared the detailed report bearing no. SFSL/DLH/7035/CHEM/2161/23 dated 31.07.2023 which is Ex. PW-15/A (running into two pages) bearing his signature at Point-A. He submitted his report in a sealed envelope alongwith the sealed parcels for onward transmissions to the forwarding agency.
20. During trial, Sh. Rajeev Pratap Singh, Advocate on behalf of accused persons admitted the sampling proceedings U/s 52A NDPS Act conducted by Sh. Dev Chaudhary, Ld. MM, Karkardooma Courts, Delhi dated 01.06.2023 (Ex. AD-1 and Ex. AD-2) U/s 330 BNSS/ 294 Cr.P.C.
21. No other witness was examined by the prosecution. Thereafter, P.E. was closed vide order dated 17.09.2025.
STATEMENTS OF ACCUSED PERSONS
22. Statement of accused Kaisher was recorded under Section 313 Cr.P.C. wherein he pleaded his innocence and denied entire prosecution's case. It is stated by him that being the police officials witnesses have deposed against him in order to prove their false case. It is stated by him that he was falsely implicated in the present case as there were two other cases pending against him due to which just to fill their quota the police officials framed him in the present DLSH010043812023 Page 36 of 55 SC No. 215/2023 STATE Vs. KAISHER & ANR.
FIR No. 325/2023(Nand Nagri) U/s 21(b) NDPS Act case.
23. Statement of accused Aakil was recorded under Section 313 Cr.P.C. wherein he pleaded his innocence and denied entire prosecution's case. It is stated by him that being the police officials witnesses have deposed against him in order to prove their false case. It is stated by him that he was falsely implicated in the present case as he was friend of co-accused Kaisher.
24. Accused persons chose not to lead any defence evidence.
FINAL ARGUMENTS
25. This Court has heard the Ld. Additional Public Prosecutor and the Ld. Counsel for the accused persons and perused the record carefully.
26. It is contended by Ld. Addl. PP for the State that all the procedures as per NDPS Act have been complied with in the present matter at the time of recovery and thereafter. It is contended that 33.61 grams heroin/ smack from accused Kaisher and 67.47 grams heroin/ smack from accused Aakil were recovered. There is nothing on record to suggest that police officials had any enmity with the accused persons. Thus, the offence U/s 21(b) NDPS Act is proved beyond reasonable doubt against the accused persons.
27. Per contra, it is contended on behalf of the accused persons that accused persons have been falsely implicated in the present case. It is contended DLSH010043812023 Page 37 of 55 SC No. 215/2023 STATE Vs. KAISHER & ANR.
FIR No. 325/2023(Nand Nagri) U/s 21(b) NDPS Act that no CCTV footage qua arrest of the accused persons or their movement towards the spot of their arrest has been filed on record. It is contended that there is no videography or photography of the recovery proceedings. No public person joined in the investigation as no recovery was effected from the alleged place and time. Thus, story of the police is concocted one.
Legal Requirement to prove the Charges :-
28. Section 21 NDPS Act reads as under:
"21. Punishment for contravention in relation to manufactured drugs and preparations.
Whoever, in contravention of any provision of this Act or any rule or order made or condition of license granted thereunder, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses any manufactured drug or any preparation containing any manufactured drug shall be punishable,--
(a) where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to one year, or with fine which may extend to ten thousand rupees, or with both;
(b) where the contravention involves quantity, lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees;
(c) where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees:
Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees."
(emphasis supplied)
29. As far as contravention of the provisions is concerned, Section 8 of NDPS Act completely prohibits the possession of narcotic drug or psychotropic substances, except for medical or scientific purposes, that too in the manner as prescribed by the Act. This section reads as under :
DLSH010043812023 Page 38 of 55 SC No. 215/2023STATE Vs. KAISHER & ANR.FIR No. 325/2023
(Nand Nagri) U/s 21(b) NDPS Act "No person shall--
(a) cultivate any coca plant or gather any portion of coca plant; or
(b) cultivate the opium poppy or any cannabis plant; or
(c) produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter-State, export inter-State, import into India, export from India or tranship any narcotic drug or psychotropic substance, except for medical or scientific purposes and in the manner and to the extent provided by the provisions of this Act or the rules or orders made thereunder and in a case where any such provision, imposes any requirement by way of licence, permit or authorisation also in accordance with the terms and conditions of such licence, permit or authorisation:
Provided that, and subject to the other provisions of this Act and the rules made thereunder, the prohibition against the cultivation of the cannabis plant for the production of ganja or the production, possession, use, consumption, purchase, sale, transport, warehousing, import inter-State and export inter-State of ganja for any purpose other than medical and scientific purpose shall take effect only from the date which the Central Government may, by notification in the Official Gazette, specify in this behalf:
Provided further that nothing in this section shall apply to the export of poppy straw for decorative purposes."
(emphasis supplied)
30. As per the Section, possession of all narcotic drugs is prohibited by Section 8 of NDPS Act.
31. The term "narcotic drugs" is defined in Section 2(xiv) as under :-
(xiv) "narcotic drug" means coca leaf, cannabis (hemp), opium, poppy straw and includes all manufactured drugs;
32. As per the definition, 'narcotic drug' includes 'manufactured drug', therefore, the possession of 'manufactured drug' is prohibited by Section 8 of NDPS Act.
DLSH010043812023 Page 39 of 55 SC No. 215/2023STATE Vs. KAISHER & ANR.
FIR No. 325/2023(Nand Nagri) U/s 21(b) NDPS Act
33. The term "manufactured drug" is defined in Section 2(ix) of NDPS Act, as under :-
(xi) "manufactured drug" means--
(a) all coca derivatives, medicinal cannabis, opium derivatives and poppy straw concentrate;
(b) any other narcotic substance or preparation which the Central Government may, having regard to the available information as to its nature or to a decision, if any, under any International Convention, by notification in the Official Gazette, declare not to be a manufactured drug, but does not include any narcotic substance or preparation which the Central Government may, having regard to the available information as to its nature or to a decision, if any, under any International Convention, by notification in the Official Gazette, declare not to be a manufactured drug;"
(emphasis supplied)
34. "Opium Derivatives" besides other things also means heroin. It is defined in Section 2(xvi) of NDPS Act as under:
(xvi) "opium derivative" means--
(a) medicinal opium, that is, opium which has undergone the processes necessary to adapt it for medicinal use in accordance with the requirements of the Indian Pharmacopoeia or any other pharmacopoeia notified in this behalf by the Central Government, whether in powder form or granulated or otherwise or mixed with neutral materials;
(b) prepared opium, that is, any product of opium obtained by any series of operations designed to transform opium into an extract suitable for smoking and the dross or other residue remaining after opium is smoked;
(c) phenanthrene alkaloids, namely, morphine, codeine, thebaine and their salts;
(d) diacetylmorphine, that is, the alkaloid also known as dia-morphine or heroin and its salts; and
(e) all preparations containing more than 0.2 per cent. of morphine or containing any diacetylmorphine"
(emphasis supplied)
35. The prosecution would also be required to prove that the quantity of the contraband recovered was of small, intermediate or commercial quantity.
DLSH010043812023 Page 40 of 55 SC No. 215/2023STATE Vs. KAISHER & ANR.
FIR No. 325/2023(Nand Nagri) U/s 21(b) NDPS Act The terms "small quantity" and "commercial quantity" are defined in Section 2(xxiiia) & 2 (viia), as under :
"(xxiiia) "small quantity", in relation to narcotic drugs and psychotropic substances, means any quantity lesser than the quantity specified by the Central Government by notification in the Official Gazette; (viia) "commercial quantity", in relation to narcotic drugs and psychotropic substances, means any quantity greater than the quantity specified by the Central Government by notification in the Official Gazette."
36. The notification specifying small quantity & commercial quantity vide SO1055(E) dated 19.10.2001 mentions the small quantity and commercial quantity for various Narcotic Drugs & Psychotropic Substances, including 'heroin'. As per entry at serial no.56 in the said notification, the small quantity for Heroin is 5 gms and commercial quantity is 250 gms.
37. In order to prove the charge U/s 21(b) NDPS Act, the prosecution is required to prove the following facts:
(1) That accused persons were separately in possession of contraband.
(2) That the possession was in contravention of the provision of the Act or any rule on order made or condition of license granted thereunder.
(3) That the contraband was opium derivative/ heroin. (4) That the quantity of the contraband was intermediate for Section 21(b) NDPS Act.
38. Besides proving the aforesaid facts, the prosecution is also required to prove that the investigating agency carried out the investigation in DLSH010043812023 Page 41 of 55 SC No. 215/2023 STATE Vs. KAISHER & ANR.
FIR No. 325/2023(Nand Nagri) U/s 21(b) NDPS Act compliance with the provisions of NDPS Act. The investigating agency must adhere strictly to the legal procedure established during the search, ensuring transparency and fairness in the investigation. By adhering to this procedure, the agency demonstrates its commitment to protecting personal liberty, a fundamental right of citizens. This ensures that the search was conducted in a manner that upholds the principles of the judicial system. The credibility of the evidence presented by the prosecution is enhanced when the investigating agency follows the statute scrupulously. The failure to adhere to the procedure raises a doubt in the mind of the court regarding the manner in which the investigation is carried out, which obviously favors the accused.
39. In State of Punjab Vs. Balbir Singh, 1994 INSC 96, Hon'ble Apex Court considered the scheme of the Act as under :-
"4. The NDPS Act was enacted in the year 1985 with a view to consolidate and amend the law relating to narcotic drugs, to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances, to provide for the forfeiture of property derived from, or used in, illicit traffic in narcotic drugs and psychotropic substances, to implement the provisions of the International Conventions on Narcotic Drugs and Psychotropic Substances and for matters connected therewith. Sections 1 to 3 in Chapter I deal with definitions and connected matters. The provisions in Chapter II deal with the powers of the Central Government to take measures for preventing and combating abuse of and illicit traffic in narcotic drugs and to appoint authorities and officers to exercise the powers under the Act. The provisions in Chapter III deal with prohibition, control and regulation of cultivation of coca plant, opium poppy etc. and to regulate the possession, transport, purchase and consumption of poppy straw etc. Chapter IV deals with various offences and penalties for contravention in relation to opium poppy, coca plant, narcotic drugs and psychotropic substances and prescribes deterrent sentences. The provisions of Chapter V deals with the procedure regarding the entry, arrest, search and seizure. Chapter VA deals with forfeiture of property derived from or used in illicit traffic of such drugs and substances. The provisions of Chapter VI deals with miscellaneous DLSH010043812023 Page 42 of 55 SC No. 215/2023 STATE Vs. KAISHER & ANR.FIR No. 325/2023
(Nand Nagri) U/s 21(b) NDPS Act matters. We are mainly concerned with Sections 41, 42, 43, 44, 49, 50, 51, 52 and
57. Under Section 41 certain classes of magistrates are competent to issue warrants for the arrest of any person whom they have reason to believe to have committed any offence punishable under Chapter IV or for search of any building, conveyance or place in which they have reason to believe that any narcotic drug or psychotropic substance in respect of which an offence punishable under Chapter IV has been committed, is kept or concealed. Section 42 empowers certain officers to enter, search, seize and arrest without warrant or authorisation. Such officer should be superior in rank to a peon, sepoy or constable of the departments of central excise, narcotics, customs, revenue, intelligence or any other department of the Central Government or an officer of similar superior rank of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government. Such officer, if he has reason to believe from personal knowledge or information taken down in writing, that any offence punishable under Chapter IV has been committed, he may enter into and search in the manner prescribed thereunder between sunrise and sunset. He can detain and search any person if he thinks proper and if he has reason to believe such person to have committed an offence punishable under Chapter IV. Under the proviso, such officer may also enter and search a building or conveyance at any time between sunset and sunrise also provided he has reason to believe that search warrant or authorisation cannot be obtained without affording opportunity for concealment of the evidence or facility for the escape of an offender. But before doing so, he must record the grounds of his belief and send the same to his immediate official superior. Section 43 empowers such officer as mentioned in Section 42 to seize in any public place or in transit, any narcotic drug or psychotropic substance in respect of which he has reason to believe that an offence punishable under Chapter IV has been committed and shall also confiscate any animal or conveyance alongwith such substance. Such officer can also detain and search any person whom he has reason to believe to have committed such offence and can arrest him and any other person in his company. Section 44 merely lays down that provisions of Sections 41 to 43 shall also apply in relation to offences regarding coca plant, opium poppy or cannabis plant. Under Section 49, any such officer authorised under Section 42, if he has reason to suspect that any animal or conveyance is, or is about to be, used for the transport of any narcotic drug or psychotropic substance, can rummage and search the conveyance or part thereof, examine and search any goods in the conveyance or on the animal and he can stop the animal or conveyance by using all lawful means and where such means fail, the animal or the conveyance may be fired upon. Then comes Section 50. ...... This provision obviously is introduced to avoid any harm to the innocent persons and to avoid raising of allegation of planting or fabrication by the prosecuting authorities. It lays down that if the person to be searched so requires, the officer DLSH010043812023 Page 43 of 55 SC No. 215/2023 STATE Vs. KAISHER & ANR.FIR No. 325/2023
(Nand Nagri) U/s 21(b) NDPS Act who is about to search him under the provisions of Sections 41 to 43, shall take such person without any unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest magistrate........ Section 51 is also important for our purpose. ....... This is a general provision under which the provisions of Code of Criminal Procedure, ("Cr. PC" for short) are made applicable to warrants, searches, arrests and seizures under the Act. Section 52 lays down that any officer arresting a person under Sections 41 to 44 shall inform the arrested person all the grounds for such arrest and the person arrested and the articles seized should be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued or to the officer-in-charge of the nearest police station, as the case may be and such Magistrate or the officer to whom the articles seized or the person arrested are forwarded may take such measures necessary for disposal of the person and the articles. This Section thus provides some of the safeguards within the parameters of Article 22(1) of the Constitution of India. In addition to this, Section 57 further requires that whenever any person makes arrest or seizure under the Act, he shall within forty-eight hours after such arrest or seizure make a report of the particulars of arrest or seizure to his immediate official superior. This Section provides for one of the valuable safeguards and tries to check any belated fabrication of evidence after arrest or seizure."
40. It is settled legal proposition that the procedure provided under Chapter V of the NDPS Act has to be scrupulously followed for the Court to raise such presumption. For raising the presumption U/s 54 of the Act it must be first established that recovery was made from the accused and the procedure provided under the NDPS Act followed thoroughly without fail. It is further settled law that for attracting the provision of Section 54 of NDPS Act, it is essential for the prosecution to establish the element of possession of contraband by the accused beyond reasonable doubt for the burden to shift to the accused to prove his innocence. This burden on the prosecution is a heavy burden. To decide whether the burden has been discharged or not by the prosecution, it is relevant to peruse the record and evidence and consider the submissions made by the parties.
DLSH010043812023 Page 44 of 55 SC No. 215/2023STATE Vs. KAISHER & ANR.
FIR No. 325/2023(Nand Nagri) U/s 21(b) NDPS Act
41. Besides proving the aforesaid facts, the prosecution is also required to prove that the investigating agency carried out the investigation in compliance with the provisions of NDPS Act. The investigating agency must adhere strictly to the legal procedure established during the search, ensuring transparency and fairness in the investigation. By adhering to this procedure, the agency demonstrates its commitment to protecting personal liberty, a fundamental right of citizens. This ensures that the search was conducted in a manner that upholds the principles of the judicial system. The credibility of the evidence presented by the prosecution is enhanced when the investigating agency follows the statute scrupulously as held by Hon'ble Bombay High Court in the case titled as Koyappakalathil Ahamed Koya vs. A.S. Menon and Ors. (03.07.2002 - BOMHC) : MANU/MH/1838/2002 :-
"In view of the principle that Ceaser's wife must be above-board, the investigating agency has to be consistent with the procedure laid down by law while conducting the search and it has to be above-board in following the procedure by investigating into the crime and if that is done it would assure the judicial mind that by giving importance to the personal liberty a fundamental right of (he citizen, the search was conducted. If that is done, then there would be creditworthiness to such evidence which has been adduced by the prosecution. The investigating agency must follow the procedure as envisaged by the statute scrupulously and failure to do so must be viewed by the higher authorities seriously inviting action against the concerned official so that laxity on the part of the investigating authority is curbed."
Thus, the failure to adhere to the procedure raises a doubt in the mind of the Court regarding the manner in which the investigation is carried out, which obviously favors the accused.
DLSH010043812023 Page 45 of 55 SC No. 215/2023STATE Vs. KAISHER & ANR.
FIR No. 325/2023(Nand Nagri) U/s 21(b) NDPS Act
42. It is settled legal proposition that the procedure provided under Chapter V of the NDPS Act has to be scrupulously followed for the Court to raise such presumption. For raising the presumption U/s 54 of the Act it must be first established that recovery was made from the accused and the procedure provided under the NDPS Act followed thoroughly without fail. It is further settled law that for attracting the provision of Section 54 of NDPS Act, it is essential for the prosecution to establish the element of possession of contraband by the accused beyond reasonable doubt for the burden to shift to accused to prove his innocence. This burden on the prosecution is a heavy burden. To decide whether the burden has been discharged or not by the prosecution, it is relevant to peruse the record and evidence and consider the submissions made by the parties.
ANALYSIS OF EVIDENCE
43. The Court will now proceed to examine and discuss the various aspects of the case and the relevant pieces of evidence under distinct headings as follows:-
Discussion on the point of compliance of Section 42 or 43 NDPS Act
44. In the present matter, PW-2, PW-4 and PW-5 were on patrolling duty, at around 8:30 pm they reached Peeli Mitti Park where they saw both the accused persons standing in suspicious condition and on seeing the police party accused persons started running from the spot, on that they were overpowered, DLSH010043812023 Page 46 of 55 SC No. 215/2023 STATE Vs. KAISHER & ANR.
FIR No. 325/2023(Nand Nagri) U/s 21(b) NDPS Act later on from possession of the accused persons heroin was recovered.
45. The present case is a case of chance recovery as no secret information was received before the apprehension of the accused persons. Accordingly, the recording of secret information in terms of Section 42(1) NDPS Act and forwarding the same to immediate official superior within 72 hours was not required in the present case. Thus, the question of compliance of Section 42 NDPS Act does not arise in the facts of this case.
46.(a) Being a case of chance recovery, the most important document in the present case was the DD entry whereby the police party consisting of PW-2, PW-4 and PW-5 were on patrolling. None of these witnesses i.e. PW-2, PW-4 and PW-5 could tell by which DD entry they were on patrolling in the area at that time. However, PW-12 ASI Omvir, Chitthamunshi on 14.05.2023 at P.S. Nand Nagri, exhibited on record the record of duty of that day as PW-12/A, as per which all the three members of raiding party i.e. PW-2, PW-4 and PW-5 were assigned the duty of Crack Team.
(b) The duty roaster Ex. PW-12/A, shows that the Crack Team was constituted for 12 hours i.e. from 8:00 am to 8:00 pm on 14.05.2023. However, this Crack Team which was supposed to work till 8:00 pm had seen and apprehended the accused persons at 8:30 pm i.e. beyond their duty hours.
(c) Interestingly, one of the member of the raiding team i.e. PW-4 Ct. Paramjeet who was supposed to be on duty from 8:00 am in the morning till DLSH010043812023 Page 47 of 55 SC No. 215/2023 STATE Vs. KAISHER & ANR.
FIR No. 325/2023(Nand Nagri) U/s 21(b) NDPS Act 8:00 pm, has stated in his cross-examination that on 14.05.2023 he came to the Police Station for joining duty at about 6:00-7:00 pm. Thus, his statement raises clear doubt qua constitution and timing of the Crack Team which was supposed to be working from 8:00 am in the morning.
(d) There is an another serious inconsistency in the testimonies of members of raiding team as it is stated by PW-2 and PW-4 that they were patrolling on foot, per contra it is contended by PW-5 Ct. Mukesh Kumar that they were patrolling in a private vehicle.
47. The above-stated discrepancies goes to the root of the matter as presence of the raiding team at the spot at the time of chance recovery has become doubtful. Thus, it can be safely concluded that the very foundation of the present case that the raiding team was present at the spot at the time of alleged recovery is doubtful.
Discussion on the point of compliance of Section 50 of NDPS Act
48. Section 50 NDPS Act is as under :-
"Conditions under which search of persons shall be conducted.
(1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate.
(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1). (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.DLSH010043812023 Page 48 of 55 SC No. 215/2023
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FIR No. 325/2023(Nand Nagri) U/s 21(b) NDPS Act (4) No female shall be searched by anyone excepting a female. (5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section100 of the Code of Criminal Procedure, 1973 (2 of 1974). (6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior."
(emphasis supplied)
49. As per prosecution case, after apprehension of the accused persons, the raiding team members informed the Duty Officer of the concerned Police Station. The information was recorded vide DD No. 0097A at 9:00 pm (Ex. PW- 9/A). As per this DD further investigation was marked to PW-10 SI Ankur Sharma. SI Ankur Sharma reached the spot at about 9:10-9:15 pm. He prepared notices U/s 50 NDPS Act, first served the notice on accused Kaisher and thereafter on accused Aakil. The copies of notices are exhibited on record as PW-2/2 and PW-2/3, respectively, bearing original signatures/ thumb impression and refusal of the accused persons. The original notices are also exhibited on record as Ex. PW-2/12 and Ex. PW-2/13, respectively. Thus, accused persons were served with mandatory notice U/s 50 NDPS Act and on their refusal to avail their legal rights, their search was carried out by PW-10 SI Ankur Sharma, wherein a transparent plastic polythene was recovered from right pocket of wearing jeans of accused Kaisher, containing smack (reddish colour substance) weighing about 33.61 grams. In the search of accused Aakil a transparent plastic DLSH010043812023 Page 49 of 55 SC No. 215/2023 STATE Vs. KAISHER & ANR.
FIR No. 325/2023(Nand Nagri) U/s 21(b) NDPS Act polythene was recovered from right pocket of his wearing jeans, containing smack (reddish colour substance) weighing about 67.47 grams.
50. PW-10 in his deposition stated that he prepared the notices U/s 50 NDPS Act and handed over the same to the accused persons. He also testified that he apprised accused persons regarding their legal rights, as mentioned in the notices U/s 50 NDPS Act. Similarly, deposed by other members of the police party i.e. PW-2, PW-4 and PW-5.
Further, in the personal search of accused persons the original notices U/s 50 NDPS Act were found. The said original notice U/s 50 NDPS Act are on record and exhibited as Ex. PW-2/12 and Ex. PW-2/13, respectively.
51. Based on the testimonies of recovery witnesses, it appears that accused persons were served with notices U/s 50 NDPS Act before their bodily search was conducted and there was no violation of this mandatory provision as it is only on their refusal, their personal search was conducted by PW-10 SI Ankur Sharma.
52. Section 55 of the NDPS Act was duly complied with in the present matter as SHO, P.S. Nand Nagri (PW-8) has also put his seal 'RS' on the two sealed parcels and copy of seizure memo, before depositing the same in the maalkhana.
DLSH010043812023 Page 50 of 55 SC No. 215/2023STATE Vs. KAISHER & ANR.
FIR No. 325/2023(Nand Nagri) U/s 21(b) NDPS Act However, he did not put his sample seal on the FSL Form as it is nowhere stated by him in his testimony before the Court that he has put his sample seal on the FSL Form as well.
53. Section 57 of the NDPS Act which requires that :-
"Whenever any person makes any arrest or seizure, under this Act, he shall, within forty-eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior."
54. In the present matter, alleged recovery of contraband was effectuated by PW-10 SI Ankur Sharma and he also arrested the accused persons. He prepared and submitted the report U/s 57 NDPS Act for onward transmission to the senior officers. SHO, P.S. Nand Nagri (PW-8) had deposed that he had also forwarded one report dated 16.05.2023 U/s 57 NDPS Act prepared by SI Ankur Sharma regarding recovery of contraband and arrest of accused persons to ACP, Sub-Division Nand Nagri. The report by SI Ankur Sharma was dispatched vide diary no. 1701 dated 16.05.2023, P.S. Nand Nagri. The said report was received vide diary no. 2111 dated 16.05.2023 in the office of ACP, Nand Nagri, Delhi. The original report is on record as Ex. PW-13/C bearing signatures of SI Ankur Sharma; SHO, P.S. Nand Nagri and ACP, Sub- Division Nand Nagri dated 16.05.2023. The Dak Register of the office of ACP, Sub-Division Nand Nagri showing receipt of report U/s 57 NDPS Act of the present case, is also exhibited as Ex. PW-13/D.
55. PW-10 SI Ankur Sharma; PW-8 Inspector Randhir Singh, the then DLSH010043812023 Page 51 of 55 SC No. 215/2023 STATE Vs. KAISHER & ANR.
FIR No. 325/2023(Nand Nagri) U/s 21(b) NDPS Act SHO, P.S. Nand Nagri and PW-14 the then ACP, Sub-Division Nand Nagri, all have stated qua this movement of report U/s 57 NDPS Act. PW-14 the then ACP has stated that the report was put to him on 16.05.2023 i.e. within 48 hours of recovery. Accordingly, in the opinion of the Court the provisions of Section 57 of the NDPS Act were complied with by the Investigating Agency in the facts of the present case.
Discussion on the point of compliance of Section 52A NDPS Act
56. As a matter of fact, in the present case the sampling proceedings were conducted before the Ld. Metropolitan Magistrate U/s 52A of the NDPS Act. The said proceedings were admitted during trial by Advocate Sh. Rajiv Pratap Singh on behalf of the accused persons which are on record as Ex. AD-1 & Ex. AD-2. Two of the samples taken during proceedings U/s 52A of the NDPS Act had duly reached FSL with the seal of 'DC' of Ld. MM and the FSL report has been duly proved on record as Ex. PW-15/A. The said two parcels were brought before the Court during trial bearing due seal of 'JK FSL DELHI'. Two sealed plastic containers having Mark A1 and A2 containing remaining contraband recovered from the accused persons, respectively, were duly proved in the Court having due seal of 'DC' of Ld. MM, besides his signatures and are exhibited as Ex. P-2 and Ex. P-4, the smack contained in the same were exhibited as Ex. P-1 and Ex. P-3.
57. Thus, in the present case there is due compliance of Section 52A NDPS Act, as the sampling proceedings were done by Ld. MM.
DLSH010043812023 Page 52 of 55 SC No. 215/2023STATE Vs. KAISHER & ANR.
FIR No. 325/2023(Nand Nagri) U/s 21(b) NDPS Act
58. During trial, PW-15 Sh. Jitendra Kumar, Senior Scientific Officer (Chemistry) at FSL, Rohini exhibited on record FSL report dated 31.07.2023 as Ex. PW-15/A wherein it was held that Ex. S-1 and Ex. S-2 i.e. samples of the present case were found to contain Diacetylmorphine, Acetaminophen, Codeine, Acetylcodeine, 6-Monoacetylmorphine, Trimethoprim and Alprazolam.
Discussion on the point of recovery of contraband
59. In the present matter, all the police officials of raiding team have stated that while they were on patrolling they saw the accused persons standing in suspicious condition and thereafter, started running from the spot holding their pockets, on that they were apprehended. Thereafter, raiding team informed the Duty Officer of concerned Police Station who sent PW-10 SI Ankur Sharma who recovered contraband from the accused persons by conducting their bodily search.
60. However, the apprehension of the accused persons and recovery of the contraband as stated above is shrouded with doubts due to following reasons:-
(a) It has already been held that there is doubt qua presence of the raiding team at the spot at the time of alleged recovery, as discussed above in paras no. 46 & 47.DLSH010043812023 Page 53 of 55 SC No. 215/2023
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FIR No. 325/2023(Nand Nagri) U/s 21(b) NDPS Act
(b) It is stated by PW-2 that on being asked about their presence, the accused persons became nervous and started running from the spot. Per contra, it is stated by PW-4 & PW-5 that when they approached towards them, the accused persons started running.
Thus, there is contradiction on this aspect in the testimonies of the members of the raiding team, as as per PW-4 & PW-5 accused persons started running when police party was approaching towards them, but they have not stated if police party have any communication or conducted any inquiry with the accused persons. Per contra, as per PW-2 the accused persons were inquired and were asked about their presence, on which they started running from the spot.
(c) There is no videography or photography of the search, arrest or recovery proceedings was clicked/ made. No CCTV footage qua presence of the accused persons at the time and place of arrest or their movement towards the spot of arrest has been filed on record.
(d) The place of recovery i.e. Peeli Mitti Park, Sundar Nagri, Delhi was a public place. Admittedly, a number of public persons were present there at that time (8:30 pm). Despite that police did not join and did not even sincerely try to join any public witness. Though, it is a fact that generally public persons do not became part of police proceedings or investigation, more so in a DLSH010043812023 Page 54 of 55 SC No. 215/2023 STATE Vs. KAISHER & ANR.
FIR No. 325/2023(Nand Nagri) U/s 21(b) NDPS Act case of Narcotic Drugs. This inaction on the part of the police raises doubt qua time and place of recovery as stated by the police.
Non-joining of public witness during the proceedings, raises serious doubt as regards the recovery made from the accused. In this regard, reliance can be placed upon judgment titled as Bantu Vs. State Govt. of NCT of Delhi (Bail Appl. No.2287/22 dtd.08.07.2024 of Hon'ble Delhi High Court).
Thus, in the present matter, it can be safely held that sincere and sufficient efforts were not made by the police party to join the independent witness in the investigation. Further, the testimonies of the police officials suffer from material contradiction as stated above, which raises serious doubt qua their version of recovery as well as qua presence of the raiding team at the spot at the time of alleged recovery Conclusion
61. In the present matter, the prosecution has failed to prove beyond reasonable doubt the presence of the raiding team at the spot at the time of alleged recovery and recovery of contraband from the accused persons as discussed above, which raise doubts in the mind of the Court as regards the story of the prosecution. In the opinion of the Court, it cannot be said beyond doubt that there is no material contradiction in the story of the prosecution. Therefore, in the opinion of the Court, the benefit of doubt would go in favour of the accused persons.
DLSH010043812023 Page 55 of 55 SC No. 215/2023STATE Vs. KAISHER & ANR.
FIR No. 325/2023(Nand Nagri) U/s 21(b) NDPS Act Order
62. Accordingly, accused persons namely Kaisher and Aakil are acquitted of the offence punishable under Section 21(b) of the NDPS Act. Accused persons are directed to comply Section 481 BNSS (earlier Section 437- A Cr.P.C.), as per rules.
63. File be consigned to Record Room after due compliance.
Announced in the open Court on 16th March, 2026 (Gajender Singh Nagar) Special Judge (NDPS Act) District Shahdara Karkardooma Courts, Delhi